David Falk’s NBA Legacy will Greatly Affect the Next CBA

By Jason Kurtyka*

Today, David Falk – a featured guest of the 2016 Jeffrey S. Moorad
Sports Law Journal Symposium – manages a smaller client list than he did
during the 1990’s when he was the NBA’s ultimate power broker, but he
is no less influential.

As CBA talks begin to heat up again, Falk’s influence on ‘90’s labor
negotiations and the NBPA are apparent on both the player and owner side
of the table. Look no further than Falk’s biggest former client,
Michael Jordan, now owner of the Charlotte Hornets. As Adrian
Wojnarowski of The Vertical detailed last week, “Jordan is a serious
voice in ongoing discussions” as a member of the owners’ labor-relations
committee.[1]

During the 1998 lockout, Jordan was on the opposite side of the table
when he, now ironically, told Washington Wizards owner Abe Pollin,
“[i]f you can’t make a profit, you should sell your team.”[2]

Falk was in Jordan’s ear in 1998, acknowledging that “I’d like to
think Michael spoke up partly because of our conversation the night
before [the comments].”[3]

During the 1995 and 1998-99 lockouts, Falk was a polarizing figure
who steered negotiations. This perceived exertion of influence led to
criticism by NBPA player representatives — “I think this whole [1995
lockout] has been manufactured by David Falk,” said former Charlotte
Hornets player Kenny Gattison.[4]

He also clashed head on with former NBA Commissioner David Stern. In
1998, Falk once called Stern out “to admit he made a mistake” during the
1995 negotiations.[5]
Stern fired back, saying, “I admit I made a mistake. But that mistake
was in 1995 with the second agreement the owners entered into — because
David Falk and the other agents helped submarine the luxury tax
agreements.”[6] Yet Falk always fought for the players, recognizing that the NBA was a star-centric league.

“You take Michael Jordan, Scottie Pippen and Dennis Rodman away from
the Bulls, and what do you have?” Falk asked during the 1998 lockout. “A
team that might not win the C.B.A. You take Stephon Marbury and Kevin
Garnett and Tom Gugliotta away from Minnesota, and what do you have
left? Not much.”[7]

Today’s NBA generates more revenue than ever before and its franchise
have never seen higher valuations. The basketball related income
(“BRI”) up for grabs is about to balloon after the NBA inked a nine
year, $24 billion TV contract with ESPN and Turner.[8] The boost to BRI will expand the salary cap to new heights, allowing the stars to command larger contracts.[9]

As the current CBA’s opt out date approaches (December 15th),
this point of negotiation has not been lost on the players,
either. Last time around, in 2011, the players agreed to a seven percent
cut in shared revenue.[10]
This perceived loss (along with other improprieties) cost former
National Basketball Players Association Executive Director Billy Hunter
his job.[11]

Following his dismissal, Falk was critical of the job Hunter had done. When asked by USA TODAY Sports about
Hunter’s legacy of creating a “strong middle class (of NBA contracts),”
Falk responded “that he accepted a max so that he could allow the
middle players to earn way more money and the bigger players to earn
less money.”[12]

“The problem with that arrangement,” Falk continued, “is that it’s
not conducive to the growth of the game. Fans don’t come to see the 13th
guy on the team or even the ninth. This is a star-driven league.”[13]

The demise of the Hunter era was followed by former NBPA President
Derek Fisher passing the torch to Chris Paul. Paul, who is considered
the first “star” to hold the post since Patrick Ewing (a Falk client),
was tasked when finding a new Executive Director. Paul and the players
ultimately hired Michele Roberts. Roberts began her tenure with anything
but a unified group of players, however.

“I was meeting players who were prepared to believe [in the Union],
said Roberts. “But, it was clear I had to earn their respect. So first
and foremost, my priority was to get in as many locker rooms as I could.
I’ve gone from getting virtually no phone calls at all from players, to
now getting half a dozen calls from players every week.”[14]

There may have not been a bigger call than the one LeBron James
placed to Roberts informing her that he intended to become the Vice
President of the NBPA.[15]

It is clear the players know what is at stake now. Stephen Curry and
Carmelo Anthony have since joined Paul and James as Vice Presidents,
rounding out the NBPA’s star-studded lineup.[16]

“It’s mind-boggling to me that people think that the players make too much,” Roberts told ESPN The Magazine.
“There would be no money if not for the players. Let’s call it what it
is. There. Would. Be. No. Money. If not for the players. They create the
game.”[17]

The current NBPA regime is echoing the same sentiment Falk did during
the ‘90’s, now flanked with as much star power as it has ever had.
Falk’s legacy as a tenacious player advocate now lives on. Not through
the players’ representatives, but through the players themselves. At the
height of its popularity, the NBA has never had a group of self-aware
star players as it does now. Whatever the product of the current CBA
negotiations may be, the fact remains that players now realize the power
they possess and the realization is, in part, a result of Falk’s
influence.

*Staff Writer, Villanova University Sports and Entertainment Law
Society Blog; J.D. Candidate, May 2018, Villanova University School of
Law.

[7] Mike Wise, Is Falk Calling the Shots for the Players in NBA Talks?, New York Times
(Dec. 28, 1998),
http://www.nytimes.com/1998/12/28/sports/pro-basketball-is-falk-calling-the-shots-for-players-in-nba-talks.html.

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